Justice Roberts Breaks The Tie On Health Care

So in the end, it was the chief justice, John Roberts, providing the key fifth swing vote to uphold the health-care law. Roberts, the conservative appointee of George W. Bush, ended up siding with the liberal wing of the court.

To talk about that turn, I'm joined by Jeffrey Rosen, law professor at George Washington University. Welcome back, Jeffrey.

JEFFREY ROSEN: Good to be here.

BLOCK: We always tend to think of Justice Kennedy as the swing justice in 5-to-4 decisions. Here, you have Chief Justice Roberts - the only time he's been the tie-breaking vote - siding with the liberals in a 5-to-4 decision. Surprised?

ROSEN: This morning, I had convinced myself that it would not be 5 to 4 striking down the mandate. But I did not expect Chief Justice Roberts to be the only justice who joined the liberals.

BLOCK: Upholding the mandate?

ROSEN: Precisely so. And it shows exactly how dedicated Roberts was to the vision he articulated at the beginning of his term as chief justice; when he said that he thought that 5-to-4 decisions, Democrats against Republicans, were bad for the court and bad for the country. He cared so much about that, that he was willing, for the first time in his career, to cast the tie-breaking vote with the liberals.

BLOCK: You've talked to the chief justice about his legacy; about how he sees his role on the court. What did he tell you about how mindful he is of judicial activism, and how the court is perceived?

ROSEN: He told me at the beginning of his first term as chief justice, that he thought in a polarized age, it was bad for the court to be dividing along ideological lines. He said he would encourage his colleagues to converge around narrow, unanimous opinions. And he embraced his model, his greatest predecessor John Marshall.

Now, of course, he has had mixed success, but he recognized this as a defining moment. And he was so dedicated to his vision that, I think, he gets huge credit for really doing exactly what he said he would do.

BLOCK: On the other hand, a lot of people would point to the very controversial Citizens United decision, also 5-4, which he authored in 2010.

ROSEN: He did, indeed, and there are other 5-to-4 decisions that he has authored or joined, including that striking down affirmative action. And in fact, it's possible that now that he has the political capital that this decision gives him, he'll be more able next year to join 5-to-4 decisions - striking down affirmative action even more broadly, striking down the Voting Rights Act. So this is not the emergence of a new and liberal John Roberts. But it is a reaffirmation of the institutionalist John Roberts; the fact that in the crucial moments, he believed that the legitimacy of the court was more important than precisely what he thought the law required in any particular case.

BLOCK: You're saying he was guided more by legacy than by the particulars of this case, or no?

ROSEN: Yes. And, in fact, it's really much of what John Marshall did. Marshall was accused of "twistifications" by his archrival, Thomas Jefferson. But he would often pick and choose among legal theories, and engage in a sort of judicial jujitsu. And that's just what Roberts did here.

It's not that he didn't believe in his decision. But the fact that he would uphold it under the taxing power, and strike it down under the Commerce Clause, showed that he wanted to assemble a bipartisan coalition of justices for a particular result because he thought the legitimacy of the court depended on it.

BLOCK: There's a lot of anger among Republicans about how the chief justice ruled here. Do you think they would be right to see him as, say, another Justice Souter; somebody who'd been appointed by a Republican president, who was expected to uphold Republican leanings, and went the other way?

ROSEN: I don't think that conservatives will conclude that Roberts is another Souter. He's given them so much, and they know that he'll give them so much in the future, that they may be inclined to give him a pass on health care. And it was striking to hear Republican leaders in Congress saying that although they disagreed with the court's decision, they would, ultimately, respect it.

BLOCK: Jeffrey Rosen, thanks for coming in.

ROSEN: Thank you.

BLOCK: Jeffrey Rosen is law professor at the George Washington University; also, legal affairs editor of the New Republic.